Attorneys for South Carolina and the Department of Energy are set to argue tomorrow before a panel of appeals judges about whether a lower court erred in not forcing the agency to pay the state hundreds of millions of dollars for storage of weapon-usable plutonium.
Legal counsel were to argue over the telephone in the case, with the COVID-19 pandemic still raging across the U.S. The state and federal governments are close to settling the lawsiut South Carolina filed in 2017, which demands $200 million in so-called economic assistance payments, but the appeal in the Federal Circuit Court is nonetheless proceeding.
South Carolina says DOE owes the $200 million after failing to remove excess plutonium from the Savannah River Site after missing a Jan. 1, 2016, to start processing 34 metric tons of the material into commercial reactor fuel using the now-canceled Mixed Oxide Fuel Fabrication Facility. Around 10 metric tons of such material made it to South Carolina from 2002 to 2014, when shipments ceased.
The Energy Department’s semiautonomous National Nuclear Security Administration (NNSA) now plans to dilute the material, mix it with concrete-like grout, and bury it deep underground at the agency’s Waste Isolation Pilot Plant near Carlsbad, N.M. Last week, a National Academies panel warned that the agency needs to do significant work to scale up this dilute-and-dispose program beyond the pilot levels demonstrated at Savannah River’s K-Area over the last several years.
Dilute-and-dipose would not start up at scale until 2028, meaning that unless the state and DOE settle the case, South Carolina could keep coming after DOE for up to $100 million in annual fines Congress wrote into law in 2002.
The state lost its argument last year before the Court of Federal Claims that Congress did not need to specifically appropriate money to pay these fines. South Carolina’s lawyers said the NNSA could tap into its Material Disposition account, within Defense Nuclear Nonproliferation, to pay up.
The same law that South Carolina cited in its lawsuit requires DOE to remove all plutonium brought to Savannah River for mixed-oxide conversion by 2022, which is well in advance of the planned started date for dilute-and-dispose.
